Editorial
Scrap Federal Sentences, Period.
by Fred E. Foldvary, Senior EditorThe U.S. federal government requires specific prison sentences for federal crimes. These arbitrary mandates prevent judges from exercising moral judgment and have shifted judicial power to federal prosecutors. Congress should eliminate these perverse mandates and even go further to scrap the federal prosecution of crimes except under specifically federal jurisdiction.
In 1987, Congress created the U.S. Sentencing Commission in order to eliminate the discretion of federal judges. The regulations of this Commission have become a body of law called the "Sentencing Guidelines," but in reality these are strict rules that bind federal courts. A study of these mandates was published on Nov. 1, 2002, by the Cato Institute as its Policy Analysis number 458, "Misguided Guidelines: A Critique of Federal Sentencing" by Erik Luna.
Some categories of crime in the US are dominated by federal prosecution, including illegal drugs and "white-collar" crimes such as financial fraud. Federal law mandates minimum prison sentences for federal crimes. For example, the possession of five grams of crack cocaine has an automatic five-year prison term. This is called "determinate" sentencing.
The U.S. Constitution authorizes Congress to enact legislation, and that includes the punishment for federal crimes. But the Commission, rather then Congress, determines when probation is allowed, dictates fines and prison terms, and determines the characteristics of the crimes and criminals for sentencing. The Commission does not hold open meetings and need not explain its mandates. The broad grant of this authority to the U.S. Sentencing Commission is an unconstitutional delegation of the legislative powers of Congress, even though it was upheld by the U.S. Supreme Court in Mistretta v. United States, 488 U.S. 361 (1989).
Moreover, the mandates are a perversion of justice. Defendants can be punished with increased prison time for acts that have not been prosecuted and for crimes they were acquitted of. The elimination of judicial discretion in sentencing has shifted authority to federal prosecutors, who have clout in charging and plea-bargaining. As Luna states, the Commission rules serve as the "bad cop" that will impose fixed sentences, letting the prosecutor play "good cop" and offer a deal in exchange for cooperation, i.e. confessing and snitching on others.
The Commission's imposed "guidelines" involve a so-called "real offense" scheme based on the "relevant" conduct of the criminal and acts "related" to the crime. Such conduct only needs a "preponderance of evidence" which can include acts for which the defendant was acquitted.
The so-called "Guidelines Manual" now has over 1000 pages of regulations, with a sentencing table containing a 258-box grid. Its complexity results in a high rate of errors. The average citizen or potential criminal has no way of understanding what the penalty will be, beyond the minimum sentence.
Since judges and prosecutors recognize that the Commission mandates have no relation to real justice, moral judgment has shifted away from the courts and their ridiculous rules towards the prosecutors, creating what professor Luna calls the "hidden nullification of the Guidelines." The prosecutors and judges adjust the "facts" to the desired sentences. "Fact bargaining" can for example involve of lying to the judge about the amount of drugs involved or the dates of the crime. A study found that the "Guidelines" are circumvented in 20 to 35 percent of cases.
The practice in many cases is to figure the appropriate prison sentence and then work backwards to create "facts" that will fit that sentence. The public records then show nominal facts rather than the real facts. So the attempt by Congress to avoid discretion instead shifted it from judges to prosecutors who can do this secretly.
Even with this de-facto discretion, there have been gross injustices. Luna cites the case of Dale Yirkovsky, who found a bullet in the home he was staying at, and placed it in a box in his room to keep it from being a hazard. He was convicted in federal court of being a felon in possession of ammunition and put in prison for 15 years. That's 15 years for putting one bullet in a safe place.
As Luna argues, "American conceptions of justice demand that the Guidelines be scrapped and the commission disbanded." Also, federal criminal law needs to be overhauled and rationalized. The problem goes beyond the Commission and its absurd "Guidelines" to the hodgepodge of conflicting federal criminal laws. Federal laws criminalizing drugs should be eliminated entirely, as the U.S. Constitution allocates criminal law to the States except for specific federal areas. Aside from military courts, federal courts should be confined to immigration, treason, federal property, and federal territories not under State jurisdiction. Illegal drug and "white collar" crime such as fraud, and gun issues, should be handed to the States for prosecution.
Don't expect to see such reforms anytime soon, however. The war on terror is expanding federal jurisdiction. More crimes are becoming federalized, and so we can expect even more power to fall on federal prosecutors and the executive branch of government. The American heritage of an independent judiciary, public trials by jury, and making the punishment fit the crime, are all being flushed down the toilet of security at any cost. But at least, thanks to the Cato study, the American public can be made aware that we have tossed away our system of justice.
Copyright 2002 by Fred E. Foldvary. All rights reserved. No part of this material may be reproduced or transmitted in any form or by any means, electronic or mechanical, which includes but is not limited to facsimile transmission, photocopying, recording, rekeying, or using any information storage or retrieval system, without giving full credit to Fred Foldvary and The Progress Report.
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